Filed 5/1/20 Khan v. Sandoval CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

DEAN KHAN,

Plaintiff and Respondent,

v.

ABEL SANDOVAL,

Defendant and Appellant.

B293536

(Los Angeles County

Super. Ct. No. BC608357)

APPEAL from orders of the Superior Court of Los Angeles County. Marc D. Gross and Robert S. Draper, Judges. Reversed and remanded with directions.

Kinkle, Rodiger & Spriggs, Michael F. Moon; Pollak, Vida & Barer and Daniel P. Barer for Defendant and Appellant.

Law Office of Martin N. Buchanan, Martin N. Buchanan; Panish Shea & Boyle, Brian J. Panish, Spencer R. Lucas; The Novak Law Firm and Sean M. Novak for Plaintiff and Respondent.

_________________________________

While making a left turn in his car, appellant Abel Sandoval struck respondent Dean Khan’s motorcycle. Khan suffered serious injuries from fractures in his left leg and foot. Khan sued Sandoval for negligence.

A jury awarded Khan $684,086 but also found that he was 50 percent responsible for the accident, thus reducing his damages to $342,043. The trial court ordered a new trial limited to the issues of: (1) the amount of Khan’s damages; (2) whether Khan was negligent; and (3) if Khan was negligent, his proportionate fault. Thus, under the trial court’s new trial order, Sandoval’s negligence was established and was not subject to retrial.

Sandoval raises two issues on appeal. First, Sandoval contends that he accepted a pretrial offer to settle the case for $75,000 that Khan served pursuant to Code of Civil Procedure section 998. Second, Sandoval contends that the trial court erred in ordering a new trial at which his negligence would be treated as established. Sandoval argues that the trial court could not properly order a partial new trial on liability because Khan moved for a new trial only on the issue of damages.

We reject Sandoval’s first contention. Khan’s section 998 settlement offer required Sandoval to agree to a judgment against him. In response, Sandoval proposed a release and a dismissal without any admission of liability. The written record therefore shows that the parties did not agree on the terms of a settlement.

However, we agree with Sandoval’s second argument. The trial court could grant a new trial only on a ground that Khan timely asserted in his motion. As Sandoval acknowledges, Khan’s motion for a new trial on the ground of insufficient damages gave the trial court the discretion to order a complete new trial if the court concluded that trying damages alone would be unfair. However, it did not give the trial court the authority to issue an order for a partial new trial on terms that would prejudice Sandoval in the absence of proper notice of that remedy.

The record suggests that a trial on damages alone would be unfair. The trial court found that the evidence weighed against the jury’s finding that Khan was negligent. Along with the non-unanimous verdict on the issue of Khan’s responsibility for his own harm and the inadequate damage award, this suggests that the jury might have reached a compromise verdict. In any event, Sandoval does not object to a complete new trial. We therefore conclude that the best course is to remand for a new trial on all issues, unless Khan chooses to accept the existing judgment.

BACKGROUND

1. The Accident

On January 31, 2014, about 10:20 p.m., Khan was riding his motorcycle southbound on Western Avenue. Sandoval was driving his Mazda 626LX north on Western, intending to turn left on Ninth Street. As Khan rode through the intersection of Western and Ninth Street, Sandoval made his left turn. In the process, Sandoval struck Khan’s motorcycle, knocking Khan onto the pavement.

Khan testified that he entered the intersection when the light had just turned yellow. Sandoval testified that he did not see Khan when he made his left turn. The officer who investigated the accident formed the conclusion that Khan had entered the intersection on a yellow light.

A witness, Jejuana Johnson, was headed west on Ninth Street (also referred to as James Wood Boulevard). She was stopped at the intersection of Ninth and Western when the accident occurred. There was a truck in front of her, but she was able to see the intersection. She saw the collision occur when her light was still red. Several seconds after the collision—“maybe about four seconds or more”—her light turned green and she and the truck in front of her proceeded toward the intersection. On cross-examination, Johnson admitted testifying at her deposition that her light turned green right after the impact.

Sandoval called an accident reconstruction expert at trial, Jon Landerville. Landerville testified that the traffic signals at the intersection operate so that there is a period of about .7 seconds during which all lights at the intersection are red. Based on his investigation, Landerville estimated that Khan was traveling at a speed of about 40 miles per hour when he approached the intersection. At 40 miles per hour, Khan would have traveled about 41 feet in .7 seconds.

Khan suffered serious injuries to his left leg from the accident, including fractures to his femur and other bones in his ankle and foot, as well as ligament damage. The injuries were extremely painful and required multiple surgeries. Khan has ongoing problems from his injuries, including pain and arthritis in his ankle. He is a candidate for ankle fusion surgery in the future. He has difficulty walking long distances and standing for long periods and cannot run or play sports.

There was no dispute at trial that the medical treatment Khan received was reasonable and necessary and causally related to the accident. The parties stipulated that the amount of Khan’s past medical bills was $349,085.

2. Khan’s Section 998 Settlement Offer

On October 25, 2017, eight months before trial, Khan served a written settlement offer pursuant to section 998. The offer stated that Khan would settle all of his claims by “accepting from this defendant SANDOVAL the total amount of $75,000 (Seventy-Five Thousand Dollars and no cents), and by allowing Judgment to be taken and entered against defendant ABEL SANDOVAL for said amount in accordance with Code of Civil Procedure §998. If defendant ABEL SANDOVAL accepts this offer, then each side shall bear their own costs and attorneys’ fees.” The offer stated that it would remain open for 30 days, or until the first day of trial, whichever occurred first. Pursuant to section 998, the offer included a “Notice of Acceptance” for Sandoval to sign and file.

Sandoval’s counsel responded to the settlement offer with a letter dated November 10, 2017 (November 10 Letter). The letter stated: “Please be advised that defendant, Abel Sandoval, accepts plaintiff’s Statutory Section 998 Offer in the amount of $75,000.00. We will forward a release and dismissal under separate cover.”

As promised, Sandoval’s counsel sent a follow-up letter on November 14, 2017 (November 14 Letter), enclosing a dismissal form and a five-page release along with a W-9 tax form. The first sentence of the November 14 Letter stated that “[t]his will confirm that the above-entitled matter has been settled in full for the amount of $75,000.” However, the remainder of the letter described various conditions for providing the settlement amount. The letter stated that Sandoval would send the “settlement draft” upon receipt of the release containing a signature by Kahn that had been either notarized or witnessed by two individuals unrelated to Khan. The letter further explained that “we are not authorized to release the settlement draft” until Sandoval had received the signed and notarized (or witnessed) release, the original signed dismissal form, and the W-9 form.

Khan did not respond to these letters until December 4, 2017, more than 30 days after he had served the section 998 offer. In a letter sent that date, Khan described Sandoval’s response to his section 998 offer as a “counter offer.” Khan stated that he did not serve his section 998 offer “as a means of engaging in settlement negotiations,” but rather to “ensure that Plaintiff will recover his expert costs and legally accrued interest following a successful outcome at Trial of this matter.” The letter stated Khan’s position that “defendant never legally accepted the Offer to Compromise.”

Following further correspondence, Sandoval filed a motion to enforce the section 998 offer or, in the alternative, for entry of judgment. The trial court denied the motion on January 9, 2018. The court ruled that Sandoval had failed to cite any authority for a motion to enforce a section 998 offer. The court noted that Sandoval “had the option of complying with . . . §998(b)(1) and [California Rules of Court, rule] 3.250(a)(23), and seeking entry of judgment in that manner. However, he chose to make a motion.” Alternatively, on the merits the court ruled that Sandoval never accepted Khan’s section 998 offer. The court concluded that Sandoval’s “acceptance letter requests an additional term—a release from [plaintiff]. There was no unconditional acceptance [within] 30 days.”

3. Trial

The case was tried to a jury in June 2018. The jury found that Sandoval was negligent and that his negligence was a substantial factor in Khan’s injury. The jury awarded Khan damages in the total amount of $684,085.67, consisting of $349,085.67 for past medical expenses, $85,000 for future medical expenses, $200,000 for past noneconomic loss, and $50,000 for future noneconomic loss.

However, the jury also found that Khan was negligent and that his negligence was a substantial factor in causing his harm. The jury assigned 50 percent responsibility for the accident to Khan.

4. Posttrial Motions

The trial court entered judgment on the verdict on August 2, 2018. Khan filed two posttrial motions. Khan filed a motion for a new trial on the ground of inadequate damages under section 657, subdivision (5). He also filed a motion for partial judgment notwithstanding the verdict (JNOV). His JNOV motion sought an order setting aside the judgment with respect to Khan’s comparative fault on the ground that the evidence was insufficient to support the jury’s finding that Khan was negligent and that he shared equal responsibility for his harm.

The trial court denied Khan’s JNOV motion but granted his motion for a new trial. The court found that the “weight of the evidence was contrary to the jury’s findings on proportionate negligence and on damages.” However, the court concluded that the “strict standards” governing a JNOV motion were not met. The court explained that “[t]here was conflict in statements attributed to witness [Jejuana] Johnson on when the light turned red at the subject intersection in connection with the collision. Based upon the interpretation of this evidence most favorable to defendant, defendant’s expert Dr. Jon Landerville performed various calculations which he testified established that the light was red when plaintiff entered the intersection.”

Although the evidence was sufficient to support the verdict, the trial court concluded that the jury’s verdict finding Khan negligent was against the weight of the evidence. The court found that “the clear import of Mr. Sandoval’s testimony was that his own actions caused the accident without contributing negligence by plaintiff.” The court also found that, based on witness Johnson’s statements and her testimony as a whole, “the most credible conclusion is that . . . she believed her light was red when the accident occurred, meaning that the light had to be yellow for plaintiff when plaintiff entered the intersection.” The court noted that Landerville “accepted as accurate defendant’s characterization of Ms. Johnson’s prior statements and that this characterization formed the basis for the calculations he performed.” The court also noted “the gruesome injuries plaintiff suffered, the trauma he went through in attempting to recover from these injuries, and the likelihood that his life will be irreparably changed as a result of these injuries.” The court summarized its reasons for granting a new trial as: “(1) that the weight of the evidence did not support the jury’s verdict that plaintiff was in any way responsible for the accident (Code Civ. Proc. section 657(6)), and (2) that the jury’s damage award was inadequate (Code Civ. Proc. Section 657(5)).”

The trial court rejected Sandoval’s argument that the court could not grant a new trial on any issue other than damages because Khan had moved only for a new trial on damages. The court cited Flores v. Brown (1952) 39 Cal.2d 622 (Flores) for the principle that “where the issue of liability and damages are so interwoven that a new trial limited to the amount of damages alone would be unfair to a party, the trial court may order a complete new trial on the issue of the party’s negligence and damages even though the motion by plaintiff was limited to a new trial on [the] issue of damages.”

However, the trial court did not grant a complete new trial. Rather, the court ordered a new trial “which will be limited to the question of whether plaintiff was negligent, with the negligence of defendant established, whether any negligence of plaintiff was a substantial factor in causing the accident, the proportionate fault, if any of plaintiff, and the amount of damages reasonably incurred and to be incurred by plaintiff.” (Italics added.)

DISCUSSION

1. The Trial Court Correctly Ruled That Sandoval Did Not Accept Khan’s Section 998 Offer

a. The section 998 settlement procedure

Section 998 provides that, not less than 10 days prior to trial, a party may “serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time.” (§ 998, subd. (b).) The offer “shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted.” (Ibid.) Acceptance of the offer must be in writing either on the document containing the offer or on a separate document. (Ibid.) Once accepted, “the offer with proof of acceptance shall be filed and the clerk or the judge shall enter judgment accordingly.” (§ 998, subd. (b)(1).) If an offer is not accepted prior to trial “or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn.” (§ 998, subd. (b)(2).)

If a defendant does not accept a plaintiff’s offer under Code of Civil Procedure section 998 and the defendant fails to obtain a judgment more favorable than the offer, the plaintiff is entitled to recover his or her statutory costs and may recover postoffer expert witness fees. (Code Civ. Proc., § 998, subd. (d).) In a personal injury action, a defendant must also pay postoffer interest on the judgment. (Civ. Code, § 3291.)

“[G]eneral contract law principles” apply to section 998 offers and acceptances unless those principles conflict with section 998 or defeat its purpose. (T.M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 279.) Under general contract principles, it is “solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence.” (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.) Thus, an appellate court independently interprets the meaning of a written contract when the interpretation does not depend upon consideration of conflicting evidence. (Id. at pp. 865–866.) That same principle applies to interpretation of a writing to determine if a contract was actually formed. (Roth v. Malson (1998) 67 Cal.App.4th 552, 556 (Roth).)

The dispute between the parties as to whether Sandoval accepted Khan’s section 998 offer depends upon interpretation of the parties’ written correspondence. The parties differ in their interpretation of the correspondence, but they agree that the contents of those writings control whether they reached an agreement. We therefore review de novo whether the exchange of correspondence showed that Sandoval accepted Khan’s offer. (Roth, supra, 67 Cal.App.4th at p. 556.)

b. Sandoval did not provide an absolute and unqualified acceptance of Khan’s offer

Acceptance of a Code of Civil Procedure section 998 offer must be “ ‘absolute and unqualified.’ ” (Bias v. Wright (2002) 103 Cal.App.4th 811, 820 (Bias), quoting Civ. Code, § 1585.) Sandoval did not provide such an unqualified acceptance during the 30-day period in which Khan’s offer was open.

As set forth in Khan’s written section 998 offer, the terms of Khan’s settlement offer were that: (1) Sandoval would pay $75,000; (2) judgment would be entered against Sandoval for that amount; and (3) the parties would bear their own costs and attorney fees. Sandoval’s response made clear that he did not accept those terms. Sandoval’s November 10 Letter stated that Sandoval “accepts plaintiff’s Statutory Section 998 Offer in the amount of $75,000.” However, the remainder of Khan’s letter showed that, while Sandoval agreed with the settlement amount, he did not accept the second of Khan’s proposed terms. Rather than agreeing to a judgment against him, Sandoval stated that he would forward a “release and dismissal.”

Sandoval’s November 14 Letter confirmed that Sandoval did not accept the condition of a judgment and also imposed additional conditions. Rather than agreeing to a judgment, Sandoval sent a dismissal form and a draft release. The release specifically stated that it concerned “the compromise of a disputed claim.” It explained that “the payment made is not to be construed as an admission of liability on the part of the party or parties hereby released, and that said Releasees deny liability therefor and intend merely to avoid litigation and buy their peace.” The November 14 Letter further confirmed that the dismissal and release were a condition of settlement: “[P]lease note that we are not authorized to release the settlement draft until such time we have received the ORIGINAL signed Dismissal, W-9 Form and the Release of all Claims bearing plaintiff’s NOTARIZED/WITNESSED (BY TWO INDIVIDUALS UNRELATED TO PLAINTIFF) signature.”

The draft release also contained numerous additional conditions for settlement. Those conditions included: (1) a release of Sandoval’s insurance company, its officers, directors, employees and “all other persons, firms, corporations, associations or partnerships”; (2) the release by Kahn of all claims resulting from the accident “whether or not said claims are set forth in [Khan’s] Complaint”; (3) a release of any and all liens; (4) a waiver of Civil Code section 1542; (5) the right to attorney fees by the prevailing party in any action concerning the release; and (6) an agreement to indemnify the released parties from “all claims, liens, obligations, actions, causes of action or demands for payments or proceedings” which might be asserted by others resulting from Khan’s claims from the accident. These conditions far exceeded the res judicata effects of a judgment.

The rejection of one settlement term (the entry of judgment) and Sandoval’s proposal for numerous additional terms that were disadvantageous to Khan (the contents of the release) meant that Sandoval’s response to Khan’s Code of Civil Procedure section 998 offer was not an “absolute and unqualified” acceptance. (Civ. Code, § 1585.)

Sandoval argues that the first sentence of his November 10 Letter was an unqualified acceptance even though he also proposed additional terms. Sandoval does not dispute that Civil Code section 1585 applies to his correspondence but relies on language in that section that permits an “acceptance of that character which the proposer can separate from the rest.” Sandoval argues that the first sentence of his November 10 Letter meets that standard.

The argument cannot be reconciled with the terms of Sandoval’s purported acceptance. His response showed that Sandoval agreed only with the settlement amount. By insisting upon a dismissal and release rather than accepting a judgment, Sandoval provided a counterproposal that was inconsistent with the settlement terms that Khan offered. Thus, Sandoval’s response was not simply an acceptance with a proposal of additional terms but was rather a counteroffer with alternative terms.

Moreover, Sandoval’s response must be viewed in its “entirety and objectively.” (Roth, supra, 67 Cal.App.4th at p. 559 [counter-counteroffer with additional terms that required the parties to analyze whether the terms matched the prior counteroffer “called for a response” and therefore did not form a contract].) In addition to rejecting a judgment, Sandoval’s response to Khan’s section 998 offer proposed numerous additional substantive terms that Sandoval expressly stated were a condition of settlement. Sandoval’s response therefore required an additional response from Khan before any settlement agreement could be formed.

Bias is instructive here. In that case, a personal injury action, the plaintiff (Bias) served an offer to settle the case for $15,000 pursuant to section 998. (Bias, supra, 103 Cal.App.4th at pp. 814–815, 820.) The offer was silent on who would pay costs. (Ibid.) The defendant, Wright, claimed that an assistant in her attorney’s office, Snyder, orally accepted the offer in a telephone call with Bias’s counsel. Wright subsequently served a written confirmation of the acceptance stating that each party was to “bear their own respective costs.” (Ibid.) Bias subsequently disputed that Wright had accepted the offer. (Id. at p. 815.)

Snyder’s declaration stated, “I called plaintiff’s attorney and told him that defendant Wright accepted plaintiff’s section 998 offer.” (Bias, supra, 103 Cal.App.4th at p. 820.) The appellate court held that, “[e]ven if Snyder’s declaration can be construed as describing an absolute and unequivocal acceptance of Bias’s section 998 offer,” it conflicted with the written notice of acceptance because the acceptance was conditioned “on the parties bearing their own costs.” (Ibid.) Because Bias’s offer was silent as to costs, “upon acceptance she would have been entitled to recover costs against Wright in addition to the $15,000 settlement offer.” (Ibid.) The court concluded that “Wright’s notice of acceptance actually set forth a counteroffer—not an acceptance—and thus did not constitute proof of acceptance under section 998.” (Ibid.)

Similarly, here, although the first sentence of Sandoval’s November 10 Letter stated that Sandoval accepted Khan’s Code of Civil Procedure section 998 offer, the remainder of that letter and Sandoval’s follow-up November 14 Letter made clear that Sandoval did not accept all the terms of the offer. Although Sandoval agreed with the settlement amount, he did not assent to the request for a judgment, and he conditioned settlement on Khan’s agreement to numerous additional substantive terms in the release. Sandoval therefore did not provide an “absolute and unqualified” acceptance of Khan’s offer. (Bias, supra, 103 Cal.App.4th at p. 820; Civ. Code, § 1585.)

Sandoval relies on Guzman v. Visalia Community Bank (1999) 71 Cal.App.4th 1370 (Guzman), but that case is inapposite. The court in that case held that a telephone conversation in which opposing counsel described a section 998 offer as “insulting and demeaning” did not amount to a rejection of the offer. (Id. at pp. 1374, 1377.) The court concluded that general contract principles should not apply to the determination of whether a section 998 offer has been rejected. (Id. at p. 1377.)

That is not the issue here. The issue in this case is not whether Sandoval rejected Khan’s section 998 offer, but whether he accepted it during the time that the offer was open. There is an important difference between the two concepts under the law governing section 998 offers. In a departure from general contract principles, a counteroffer in response to a section 998 settlement offer that proposes different terms does not necessarily operate to revoke the settlement offer. Rather, the offer remains open unless the response specifically rejects the offer. (See Guzman, supra, 71 Cal.App.4th at p. 1376; Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266, 272.) Thus, a party may respond to a section 998 offer with a counterproposal without losing the right to accept the offer later.

However, under the Code of Civil Procedure section 998 procedure, there must be an acceptance of the offer while the offer is open. General contract principles do apply to the issue of whether a Code of Civil Procedure section 998 offer is accepted, including the principle that an acceptance must be “absolute and unqualified.” (Civ. Code, § 1585; Bias, supra, 103 Cal.App.4th at p. 820.) Indeed, the court in Guzman noted that, to constitute an acceptance, a response to a Code of Civil Procedure section 998 offer “must not add additional or different terms from those offered. Otherwise, the ‘acceptance’ becomes a counteroffer.” (Guzman, at p. 1376.)

That is what occurred in this case. We need not decide whether Sandoval’s November 10 Letter and November 14 Letter actually rejected Khan’s section 998 offer. It is sufficient to conclude that those letters did not accept the offer. Sandoval has not identified any other acceptance within the 30-day time period that the section 998 offer was open, and Khan’s offer therefore expired according to its terms.

Sandoval also argues that Khan waived any objection to the “form” of his acceptance by failing to respond to the additional terms that Sandoval proposed. The authority that he cites does not support his argument.

Sandoval relies on Lodge v. General Accident, Fire & Life Assurance Corp. (1930) 105 Cal.App. 160 (Lodge). In that case, the defendant insurance company offered to pay $350 in settlement of claims from an auto accident, conditioned upon obtaining releases from the plaintiff as well as others involved in the accident. (Id. at pp. 161–163.) The plaintiff wrote a letter stating, “On payment to me of the $350.00, as offered, I will sign a release.” (Id. at p. 164.) Rather than respond to the letter, the defendant waited for the statute of limitations to expire and then refused to pay the settlement amount. (Ibid.)

The appellate court concluded that “a fair construction of the correspondence shows that [the plaintiff] intended to accept the offer of settlement as made by [the defendant].” (Lodge, supra, 105 Cal.App. at p. 165.) Thus, a contract was formed. The court simply held that, by failing to respond to the plaintiff’s letter accepting the settlement offer, the defendant had waived any right to object to the “form of the acceptance.” (Ibid.) This meant that the defendant could not claim that actual receipt of the executed releases prior to payment of the settlement amount was a condition of the settlement. (Ibid.)

Unlike the plaintiff in Lodge, Sandoval never accepted Khan’s offer. Khan therefore had no obligation to object to the “form” of an acceptance. A rule that would require an offeror to respond to any counterproposal in order to preserve the right to argue that the original offer was not accepted would mean that a contract is formed whenever a party fails to respond to a counteroffer. That is not the law. (See Bias, supra, 103 Cal.App.4th at p. 820.)

2. The Trial Court Erred in Granting a Limited New Trial on a Ground that Khan Did Not Raise and that Prejudiced Sandoval

a. Standard of review

A trial court’s order granting a new trial is generally reviewed for abuse of discretion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859.) However, “any determination underlying any order is scrutinized under the test appropriate to such determination.” (Ibid.) Thus, where the legal basis for a trial court’s decision granting a new trial is challenged on appeal, an appellate court reviews the legal issue de novo. (Id. at p. 860.)

Here, Sandoval does not challenge the trial court’s factual determination that the weight of the evidence was against the jury’s verdict that Khan was negligent. Rather, Sandoval argues that the trial court made a legal error in ordering a new trial on a ground that was not part of Khan’s new trial motion. We review that legal issue de novo.

b. A trial court may grant a new trial only on a ground raised in the moving party’s motion

The grounds and the procedure for granting a new trial are specified by statute. (See §§ 657, 659, 660.) “The power of the trial court to grant a new trial may be exercised only by following the statutory procedure and is conditioned upon the timely filing of a motion for new trial, the court being without power to order a new trial sua sponte.” (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 899 (Sanchez-Corea).)

A party moving for a new trial must specify a statutory ground or grounds for the motion. (Malkasian v. Irwin (1964) 61 Cal.2d 738, 745 (Malkasian).) And a new trial “can be granted only on a ground specified in the motion.” (Ibid.; see also La Manna v. Stewart (1975) 13 Cal.3d 413, 418 [order granting a new trial was “deemed to have been based” on a finding of insufficient evidence because that was the only ground raised in the motion and “a new trial can be granted only on a ground specified in the motion”].)

The statutory procedure for a new trial motion must be strictly construed to ensure the protection of litigants’ rights. (Collins v. Sutter Memorial Hospital (2011) 196 Cal.App.4th 1, 17 (Collins).) This includes the opposing party’s right to notice and an opportunity to be heard on the grounds that a moving party asserts for a new trial. (Id. at p. 20; McFarland v. Kelly (1963) 220 Cal.App.2d 585, 589–590 (McFarland) [“The purpose of all noticing procedures in the Code of Civil Procedure appears to be to ensure that the procedure utilized actually affords reasonable notice to the opposing party”].)

Thus, where a notice of intent to file a new trial motion is amended or supplemented with a memorandum specifying an additional ground for a new trial within the statutory time period for providing notice of a new trial motion, a new trial may be granted on the additional ground because the opposing party has had “timely notice of the new ground and an opportunity to address that ground.” (Collins, supra, 196 Cal.App.4th at p. 20; see also McFarland, supra, 220 Cal.App.2d at pp. 589–590.) Conversely, a moving party may not specify an additional ground for a new trial motion after the statutory notice period has expired “since that would in effect extend the time allowed by law for giving such notice, and the court has no power to grant an extension.” (Sitkei v. Frimel (1948) 85 Cal.App.2d 335, 337.)

Here, Khan moved for a new trial only under section 657 subdivision (5) on the ground of inadequate damages. Khan did not move for a new trial under section 657 subdivision (6) on the ground that the weight of the evidence was against the jury’s finding that Khan was partially responsible for the accident. Thus, the trial court could properly base a new trial order on the former ground but not on the latter.

c. Khan’s JNOV motion could not substitute for a properly noticed new trial motion

Khan contends that his JNOV motion provided Sandoval with sufficient notice to permit the trial court’s order granting a new trial on the issue of Khan’s negligence. Khan argues that because he moved for JNOV on the ground that the evidence was insufficient to support the jury’s finding that he was negligent, Sandoval had an adequate opportunity to brief the evidentiary issue. We disagree.

As Sandoval correctly points out, a JNOV motion seeks different relief under a different standard than a motion for a new trial that argues insufficient evidence. A JNOV motion seeks judgment in the moving party’s favor, not a new trial, and may only be granted if “ ‘it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict.’ ” (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110, quoting Brandenburg v. Pacific Gas & Electric Co. (1946) 28 Cal.2d 282, 284.) In considering a JNOV motion, a trial judge may not weigh the evidence or judge the credibility of witnesses. (Hauter, at p. 110.)

In contrast, a trial judge may grant a motion for new trial on the ground of inadequate damages if the court determines that the weight of the evidence is against the verdict. (§ 657, par. 3; Truhitte v. French Hospital (1982) 128 Cal.App.3d 332, 352.) In weighing the evidence, the trial court “ ‘is an independent trier of fact.’ ” (Truhitte, at p. 352, quoting Sanchez v. Hasencamp (1980) 107 Cal.App.3d 935, 944.) The court may “ ‘ “disbelieve witnesses, reweigh evidence and draw reasonable inferences that are contrary to those drawn by the jury.” ’ ” (Sanchez, at p. 944.)

This means that, in opposing Khan’s JNOV motion, Sandoval had no need to address the weight of the evidence, including arguments concerning witness credibility. Rather, he could restrict his arguments to showing that, viewing the evidence in his favor, there was sufficient evidence for the jury’s finding that Khan was 50 percent responsible for his own injury.

In fact, that was the focus of Sandoval’s arguments in opposing Khan’s JNOV motion. Sandoval argued that Landerville’s testimony alone was sufficient to support the jury’s finding of comparative fault. Sandoval did not respond to the merits of Khan’s arguments on witness credibility or the weight of the evidence. Instead, Sandoval merely pointed out that such arguments were inappropriate under the standard governing JNOV.

That was a proper—and sufficient—response to Khan’s credibility arguments in a JNOV motion but would not have been proper or sufficient in responding to a motion for a new trial on the ground of insufficient evidence. Thus, Khan’s JNOV motion did not provide Sandoval with sufficient notice of, and an opportunity to address, the issues on which the trial court relied in granting a partial new trial on liability.

Khan cites Shapiro v. Prudential Property & Casualty Co. (1997) 52 Cal.App.4th 722 (Shapiro) for the principle that “when a party brings a timely posttrial motion, the trial court has broad discretion to determine the relief being requested.” (Id. at p. 727.) That case does not support the trial court’s ruling here.

The posttrial motions that the court considered in Shapiro were different in critical respects from those at issue here. In Shapiro, the plaintiff, Shapiro, sued an insurance company for damages he sustained from a fire. (Shapiro, supra, 52 Cal.App.4th at p. 725.) The jury returned a verdict in Shapiro’s favor but awarded less in damages than the evidence established. (Ibid.) Along with a motion for partial JNOV, Shapiro filed a posttrial motion to vacate the judgment and to enter a different judgment pursuant to section 663. (Ibid.) The trial court concluded that the special verdict was too ambiguous to interpret, and therefore treated Shapiro’s motion to enter a different judgment as a motion for a new trial, ordering a new trial limited to the issue of damages. (Id. at pp. 725–726.)

The appellate court affirmed. The court rejected the defendant’s argument that the trial court could not order a new trial because Shapiro did not file a new trial motion. (Shapiro, supra, 52 Cal.App.4th at pp. 726–728.) The court observed that although Shapiro did not move for a new trial, he “did request relief consistent with a motion for a new trial.” (Id. at p. 727.) In response to the defendant’s argument that Shapiro sought a corrected judgment rather than a new trial, the court explained that the trial court’s jurisdiction to grant a new trial “does not depend on whether the remedies for the two motions resemble each other, but whether the trial court had the authority to grant a new trial on damages based on the error set forth in the filed motion.” (Ibid.) Shapiro moved to vacate the judgment on the ground that the jury found the defendant liable for negligent misrepresentation, but the judgment, contrary to law, included a deduction for comparative negligence. The court concluded that, “[s]ince an error in law is one basis for granting a motion for a new trial and the court has broad discretion to provide the proper relief, the court did not err when it granted a new trial on damages.” (Id. at p. 728.)

In contrast to the motion to correct the judgment that the plaintiff filed in Shapiro, Khan’s JNOV motion did not identify an error that the trial court used as the basis to grant a new trial. As discussed above, the only issue that Khan’s JNOV motion raised was whether substantial evidence supported the jury’s finding that Khan was partially responsible for his own injury. If shown, that ground could have served as the basis for a new trial. The lack of substantial evidence to support a jury’s verdict is one of the grounds on which a trial court may order a new trial. (See § 657, par. 6.) However, the trial court did not grant a new trial on that ground. Rather, the court denied Khan’s JNOV motion after finding sufficient evidence to support the verdict and ordered a new trial on comparative fault only after weighing the evidence of Khan’s negligence.

Khan’s JNOV motion did not provide notice that the trial court would order a new trial on that basis. As discussed above, notice of an argument that there was insufficient evidence to support a verdict identifies a different issue than notice of an argument that the weight of the evidence was against the verdict. (See Sanchez-Corea, supra, 38 Cal.3d at p. 906 [“ ‘the phrase “against law” does not import a situation in which the court weighs the evidence and finds a balance against the verdict, as it does in considering the ground of insufficiency of the evidence’ ” under the new trial standard], quoting Musgrove v. Ambrose Properties (1978) 87 Cal.App.3d 44, 56.)

We therefore conclude that the discretion to interpret posttrial motions the court discussed in Shapiro does not include the discretion to order a new trial where a nonmoving party does not have notice of the ground on which the new trial is ordered. Such discretion would be inconsistent with the principle that the statutory procedure for new trial motions must be strictly construed, and with the well-established rule that a trial court may order a new trial only on a ground “specified in the motion.” (Malkasian, supra, 61 Cal.2d at p. 745.) Thus, Khan’s JNOV motion could not substitute for a properly noticed new trial motion requesting the relief that the trial court actually ordered.

d. Khan’s motion for a new trial on damages did not permit an order for a partial new trial on liability on a basis that prejudiced Sandoval

Khan also relies on cases holding that where a party moves for a new trial on damages, a trial court may nevertheless order a complete new trial on all issues if the court concludes that a partial new trial would be prejudicial to the defendant. (See Flores, supra, 39 Cal.2d at p. 632 [“when issues of liability and damages are so interwoven that a new trial limited to damages alone would be unfair to the defendant, the trial court may order a complete new trial although the only motion is by the plaintiff for a limited new trial”]; Hamasaki v. Flotho (1952) 39 Cal.2d 602, 608–609 (Hamasaki).) This commonly occurs when a low damage award and other factors indicate that the jury might have compromised on liability.

For example, in Hamasaki, a child was hit by a car and severely injured. (Hamasaki, supra, 39 Cal.2d at p. 604.) Despite the injuries, the jury awarded the plaintiffs only a small amount of general damages. (Ibid.) Our Supreme Court concluded that the verdict was a result of a compromise and that a new trial on all issues was therefore appropriate. The court held that a complete new trial could be ordered even though the plaintiffs had only moved for a new trial on damages. (Id. at pp. 607–609.) The court explained that a party “ordinarily may seek a retrial only of the issues on which the decision has been adverse to him . . . . [H]owever, situations may arise where the issues are so interwoven that a partial retrial would be unfair to the other party. When, as in the present case, for instance, the jury has, by compromising the issues of liability and damages, inextricably interwoven those issues, a retrial of the damages issue alone based on the erroneous assumption that defendant’s liability has been determined would be extremely unjust to him. A situation is thus presented where the plaintiff has been aggrieved, but the specific relief he seeks may not be granted without doing an injustice to the defendant.” (Id. at pp. 608–609, italics added.)

Thus, the cases that Khan cites permit a complete new trial when a limited retrial would be unfair to the nonmoving party. That is not what occurred here.

The trial court here did not order a complete new trial out of concern that a retrial on damages only would prejudice Sandoval. Rather, the court ordered a limited new trial on damages and some liability issues in a manner that favored Khan and prejudiced Sandoval. The trial court ordered a retrial in which Sandoval’s liability would be established while Khan would have another opportunity both to dispute his own negligence and to seek a larger damage award.

Whether or not the trial court could properly have ordered such a limited retrial if Khan’s motion had asked for such relief, it could not do so sua sponte. The trial court’s order crafting the scope of a limited new trial on liability without notice to Sandoval was inconsistent with the purpose of the statutory notice procedure to protect litigants’ rights. (See Collins, supra, 196 Cal.App.4th at p. 17.) We therefore conclude that the trial court erred in ordering a new trial limited to the issue of the amount of damages and Khan’s comparative negligence, if any.

e. Scope of trial on remand

Under the cases that Khan cites, the trial court could have ordered a complete new trial on damages and liability even though Khan moved for a new trial on damages only. (See Flores, supra, 39 Cal.2d at p. 632.) Sandoval concedes the point. He therefore acknowledges that this court may either order a new trial limited to damages in accordance with the scope of Khan’s new trial motion or order a complete new trial of all issues.

We conclude that the latter option is the better choice. As discussed above, the possibility of a compromise verdict is a sufficient ground to order a new trial on all issues. The circumstances suggest that the jury might have agreed to such a compromise verdict here.

As the trial court recognized, the percentage of responsibility that the jury assigned to Khan for the accident and the amount of damages that it awarded to him are closely related. The jury presumably understood that relationship. The jury was instructed that Khan’s damages would be reduced by the jury’s “determination of the percentage” of Khan’s responsibility for his own harm.

The trial court found that the weight of the evidence was against the jury’s finding that Khan shared responsibility for his own harm. Neither party disputes that finding. Thus, the jury agreed to a verdict that awarded inadequate damages to Khan when judged by the weight of the evidence at trial.

The verdict was not unanimous. Although the jury unanimously found that both Sandoval and Khan were negligent, the jury vote on the question whether Khan’s negligence was a “substantial factor in causing his harm” was only nine to three. The jury also split nine to three on the amount of Khan’s damages for past and future noneconomic loss.

Inadequate damages and a non-unanimous verdict both suggest the possibility of compromise. (See Ryan v. Crown Castle NG Networks, Inc. (2016) 6 Cal.App.5th 775, 791 (Ryan) [The three most common factors suggesting a compromise verdict are “a patently inadequate damage award, close or difficult issues of liability, and a non-unanimous verdict”].) And, although the trial court concluded that the evidence on liability was not particularly close, the evidence was certainly disputed, and the trial court’s denial of Khan’s JNOV motion (unchallenged on appeal) shows that there was at least sufficient evidence to support the jury’s finding that Khan had some degree of responsibility for the accident.

If a compromise occurred, it is impossible to know what the trade-offs were. It is possible that some members of the jury, understanding the relationship between Khan’s comparative negligence and the amount of his damages, agreed to vote for higher damages in exchange for a vote that Khan was 50 percent responsible. Or it is possible that some jurors voted to find Sandoval negligent in exchange for a vote that Khan was equally responsible for his own harm. One can only speculate about the nature of any compromise. But because the verdict itself was against the weight of the evidence and the circumstances suggest the possibility that some compromise occurred, the best course is to require a new trial on all issues.

However, if Khan prefers the outcome of the first trial to a new trial of all issues, that option is also available. As the court explained in Ryan: “ ‘If the defendant does not wish a new trial he need not move for one, and if the plaintiff does not wish a complete new trial . . . he need simply say so.’ [Citation.] Here defendant has already made this election by not moving for a new trial. Plaintiff sought a new trial, but on damages only. He should therefore be given an opportunity to choose between a new trial on all issues and reinstatement of the judgment now under review.” (Ryan, supra, 6 Cal.App.5th at p. 795, quoting Hamasaki, supra, 39 Cal.2d at p. 609.)

Like the defendant in Ryan, Sandoval did not move for a new trial below. Thus, if Khan chooses to accept the judgment under review, he may do so. However, if Khan prefers a new trial, the trial must be on all issues.

DISPOSITION

The trial court’s order granting a new trial limited to the issues of the amount of damages and Khan’s comparative negligence is reversed. The case is remanded for a new trial on all issues. Alternatively, if Khan wishes to accept the existing judgment, he may elect to do so. The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

CHAVEZ, J.

HOFFSTADT, J.